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Journalism of Courage
NEW DELHI, JAN 2: Can a person who has been tried and convicted in a foreign country be retried? That was the argument that dominated the hearing in JKLF founding member Hashim Qureshi’s habeas corpus petition in Delhi High Court today. The special two-judge later adjourned the matter till Thursday afternoon till when an earlier stay order on his remand to J&K police is to continue.
Qureshi, who along with his brother hijacked a Fokker friendship aircraft with 28 passengers on board from Srinagar to Lahore in 1971, was allowed to return to India on December 29, in connection with the Centre’s current peace initiative in Kashmir.
During today’s hearing spanning almost three hours, J&K counsel Ashok Mathur argued that the accused had been tried in 1971 for entirely different offences — wrongful confinement and setting the aircraft on fire — in a special court in Pakistan. However, the FIR filed in J&K charges him for kidnapping, robbery of the aircraft and aiding the enemy.
Qureishi, currently in Tihar Jail, was scheduled to appear at a local court at Srinagar yesterday in the 1971 plane hijacking case. Earlier on Saturday, a lower court granted transit remand to Jammu & Kashmir police so that hecould be produced before a local court at Jammu on January 1.
The bench in its order today observed that they needed to examine the order passed by the Pakistani special court to see whether it took cognisance of the same offences. The question of whether these could be tried by a Pakistan court, when the offence took place in India, also needed to be looked into, the bench said.
The bench has also asked the J&K counsel to file an affidavit on whether the Enemy Agents Ordinance of 1943 was in effect in 1971, and whether it is still relevant today. When Mathur argued that Pakistani corts lacked “competent jurisdiction”, the bench observed: “Forget about Pakistan and India, the bar is against second trial.”
Standing counsel for Delhi Police, Mukta Gupta, who had also been asked to file an affidavit, said that even if Qureishi had been tried for certain offences, he could be tried for others. “The kidnapping and robbery took place in India, so Pakistan did not have the jurisdiction to try it.”
The habeas corpus petition, represented by Qureshi’s lawyer K.T.S. Tulsi, argued that since Qureshi had already undergone a jail term in the hijacking case, he could not be re-tried for the same offence.
Earlier on Saturday, Metropolitan Magistrate Kamini Lau had granted transit remand on an application filed by J&K police in connection with thehijacking case registered at Srinagar.
